Azra Hoosen |ah@radioislam.co.za
8 November 2024 | 11:00 CAT
2 min read

The Constitutional Court is considering a landmark case that could reshape parental leave laws in South Africa. The case challenges the current maternity leave provisions under the Basic Conditions of Employment Act (BCEA), arguing that they unfairly discriminate based on gender and parental status.

On 1 November 2024, the Court heard three key applications related to the BCEA and the Unemployment Insurance Act (UIA). The first application sought to confirm the Gauteng High Court’s ruling, which declared certain sections of the BCEA and UIA unconstitutional due to discrimination against fathers, adoptive parents, and those using surrogacy.

The second and third applications, submitted by the Commission for Gender Equality and Sonke Gender Justice, argue for equal parental leave for all parents, including adoptive parents, through the “4+4” proposal. This proposal would give both parents four months of leave, challenging the assumption that childcare responsibilities should solely fall on mothers.

Speaking to Radio Islam, Layla Shah, an Associate at Bowmans South Africa, said: “This is a very progressive proposal. It is ideal in a just society, and it is the fairest proposal to treat all parents equally. However, there are numerous considerations that the legislature would make if it were to amend the BCEA in line with this proposal. The most important would be how to balance the potential consequences on employers and business needs on the one hand and then the right to equality, dignity, and freedom of trade on the other hand.”

Shah further explained that the Constitutional Court has the authority to enforce the High Court’s order, which could grant immediate interim relief regarding parental and maternity leave for all South Africans. “Without this interim relief, South Africans might have to wait years before Parliament effects the change, which could have a negative impact on many families for the next couple of years,” she said.

Although the government has conceded that the current provisions are unconstitutional, the Minister of Employment and Labour has raised concerns about granting interim relief immediately. The government’s main argument is that Parliament should be given time to address the complexities involved in making the necessary amendments.

The Court has also raised concerns about societal norms, the economic impact, and how parental leave would be managed across various work environments. Shah noted that some biological arguments have been presented, pointing out that women have a limited window to have children, while men can father children well into old age. This difference could have significant implications for employers, as requiring businesses to grant men four months of parental leave could disrupt operations.

According to Shah, for Sonke Gender Justice, the challenge is not just to accept the relief granted but to push for more. They advocate for expanded parental leave rights that would ensure equal leave for both parents, including fathers, adoptive parents, and those using surrogacy. The goal is to promote greater equality in caregiving responsibilities and remove gender-based barriers to parental leave.

Background

On 25 October 2023, the Gauteng Division of the High Court ruled in the case of Van Wyk & Others v The Minister of Employment and Labour, declaring certain provisions of the BCEA and the UIA invalid. The Court found that these provisions unfairly discriminated against fathers, adoptive parents, and those using surrogacy, as they only granted maternity leave to biological mothers. This ruling was suspended for two years to allow Parliament time to amend the laws, and it will have no effect unless confirmed by the Constitutional Court.

LISTEN to the full interview with Ml Junaid Kharsany and Layla Shah, an Associate at Bowmans South Africa, here.